SPR Bulletin 03-04

Recently, this office has received a large number of appeals and questions concerning requests for Internal Affair and Police Personnel Records. In an effort to assist all persons involved, I have drafted the following advisory opinion. I ask that you review the cases cited herein and circulate this Opinion to all members of your staff concerned with public records access. Thank you.

For many years, exemption (c) of the public record law has been utilized by the record custodians of Massachusetts to withhold records and data involving municipal employees. Widely known and referred to as the “personnel exemption”, exemption (c) allows a custodian to segregate and redact certain information from public records which specifically relates to:

personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy

G. L. c. 4, § 7(26)

Recently, several court decisions have emerged which have caused great confusion with respect to this exemption. This Opinion seeks to inform and advise the various custodians of the ramifications of these court decisions and to offer guidance to the custodians in answering the public’s request for records.

Clearly, all medical information, data and records of whatever type and from whatever source may be properly withheld in their entirety. For many, this is not a change from tradition and still reflects recent court rulings. Personnel records, however, and the definition thereof, have undergone significant changes. Most notably is a decision written by Judge Grasso of the Appellate Court in 2003 in which he distinguishes “Internal Affairs” records from “personnel” records.

In Worcester Telegram & Gazette Corporation v. Chief of Police of Worcester, & another, 58 Mass. App. Ct. 1 (2003), Judge Grasso stated, “an internal affairs investigation is a formalized citizen complaint procedure, separate and independent from ordinary employment evaluation and assessment. Unlike other evaluations and assessments, the internal affairs process exists specifically to address complaints of police corruption (theft, bribery, acceptance of gratuities), misconduct (verbal and physical abuse, unlawful arrest, harassment), and other criminal acts that would undermine the relationship of trust and confidence between the police and the citizenry that is essential to law enforcement.” See Worcester at 607.

Citing Globe Newspaper Co. v. Police Comm’r. of Boston, 419 Mass. at 863 (1995), Judge Grasso writes “the internal affairs procedure fosters the public's trust and confidence in the integrity of the police department, its employees, and its processes for investigating complaints because the department has the integrity to discipline itself. A citizenry's full and fair assessment of a police department's internal investigation of its officers’ actions promotes the core value of trust between citizens and police essential to law enforcement and the protection of constitutional rights. Disciplinary action is but one possible outcome; exoneration and protection of the officer and the department from unwarranted criticism is another. We reject the city's contention that, viewed as a whole, the entire internal affairs file is exempt "personnel [file] or information" because it is a "disciplinary report" relative to a specific complaint about a specific police officer's actions.” See Worcester at 607.

The court further believed that even though an internal affairs investigation might lead to discipline or criminal action, it does not automatically classify all records of the investigation as “disciplinary or promotion, demotion or termination information.” Such a broad construction ignores the essential directive that the legislative term "personnel [file] or information" derives its meaning from the nature or character of the document, not from its label or its repository.” Id. at 608.

Finally, Judge Grasso closed his discussion by further delineating the difference between internal affairs records and disciplinary records by stating, “it would be odd, indeed, to shield from the light of public scrutiny as "personnel [file] or information" the workings and determinations of a process whose quintessential purpose is to inspire public confidence.” Ibid.

The court then held that materials in an internal affairs investigation are different in kind from the ordinary evaluations, performance assessments and disciplinary determinations encompassed in the public records exemption for personnel or information. The court declined to discuss alternative exemptions or other privacy arguments such as investigatory exemption. The court did state, however, that certain records should be redacted or withheld to encourage "individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Id. at 609

The document in question in the Worcester case was a notice from the disciplining authority to the particular employee. This notice advised the employee of the findings of the inquiry and the ultimate disciplinary decision to be taken. The court found that the nature and character of this document made it part of "the core category of personnel information that is useful in making employment decisions regarding the employee. Id. at 609.

The court also acknowledged that such a minute distinction between the two types of records appeared to be a “splitting of hairs” but found that the memorandum from the chief to the employee contained personnel information, which is exempt as such while documents from the internal affairs investigation itself such as the interviews, the reports, the conclusions and recommendations, and the documenting of its results to the complaining party were NOT exempt.

Therefore, in the way of guidance, this Office will view all future appeals concerning this issue similarly. This ruling clearly narrows the definition of personnel records and this narrowing will be followed by this Office. If you require additional information or assistance in dealing with record requests for personnel records, I urge you to seek competent legal advice from your agency or municipal counsel.